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Environmental Law and Fossil Fuels: Barriers to Renewable Energy

This article is concerned with renewable energy’s too-slow transition and with how existing legal regimes work to preserve fossil energy dominance. It develops from two related claims: that an implicit support structure for fossil energy is written into law in a range of areas, including environmental law, and that statutory and regulatory concessions to fossil energy inevitably distort how we perceive the costs of bringing new energy technologies to scale. Costs for both fossil and renewable resources are clearly miscalibrated, with social costs of fossil energy still unaccounted for in price, and environmental and health benefits of renewable energy going mostly unrecognized in economic terms.

I argue here that although environmental law has done more than any other field to internalize costs of environmental harm to the energy sector, it remains integrally part of this distortion. Despite its role in regulating and mitigating harms of energy production, environmental law plays a part in preserving the “cost-effectiveness” of fossil energy. This effect obtains in at least three ways detrimental to renewables – through structural advantage; specific exclusions and exemptions for coal, oil, and gas from otherwise applicable federal controls; and fossil-favoring implementation choices under existing statutory authority. This perspective clarifies the contours of environmental law’s relevance to and influence on renewable energy. Ultimately, it also strengthens justifications for making controls on fossil energy’s environmental impacts more stringent and for advancing and sustaining policies that favor renewable energy, within existing legal frameworks and in sui generis rules.